Despite a robust anti-rape campaign spanning over three and a half decades, the perception that all women who complain about rape are “liars” still persists. The struggle has been to counter these anti-women perceptions and shift the focus upon the physical and psychological harm caused to the victim and evolve support mechanisms to help her during her journey of transforming herself from a “victim” to a “survivor”. The catalyst for the anti-rape movement launched in 1980 was the Supreme Court judgment in the Mathura rape case (Tukaram vs State of Maharashtra, 1979). The judges acquitted policemen who had gangraped the 16-year-old, subjected to multiple layers of marginalisation — poor, illiterate, orphan and tribal — on the ground that there were no marks of injury on her body and hence she must have consented. Rather than the violence inflicted upon her, her sexual conduct became the central context and her past sexual history, that she had eloped with her lover, was used to discredit her, and acquit the policemen. The campaign ultimately resulted in changes in the rape laws in 1983, which prescribed a mandatory minimum punishment of seven years in all rapes and 10 years for cases of aggravated rapes such as custodial rapes by policemen.
Despite this nothing seemed to have changed on the ground, as National Crime Records Bureau reports recorded a gradual increase in rapes, and correspondingly conviction rates went down and stringent punishment failed to be a deterrent. The Suman Rani rape case (Prem Chand vs Haryana, 1989) revealed that the perception of judges regarding rape victims had not changed. This was yet another case of custodial rape of a young girl. A complaint could be filed only when she reached her village due to which there was a delay in filing the FIR. Despite this, the lower courts had awarded the mandatory minimum punishment of 10 years as per the amended law. However, the Supreme Court reduced the punishment to five years on the following ground: “The peculiar facts and circumstances of this case coupled with the conduct of the victim girl do not warrant the minimum mandatory punishment of 10 years.” The “peculiar facts and circumstances” were — there were no marks of injury on her body, she was habituated to sexual intercourse and there was delay in filing the FIR. It did not matter that it was a case of custodial rape by two policemen.
Due to countrywide protests, a review petition was filed in which the Supreme Court clarified: “Character, reputation or status of a victim is not a relevant factor for consideration by the court while awarding the sentence to a rapist” (Haryana vs Premchand, 1990). Though these comments made good “case law”, the judges refused to enhance the punishment to the mandatory minimum 10 years.
Ironically, even after the public protests following the gruesome gangrape and murder in the Nirbhaya case, and enactment of a special law, Protection of Children from Sexual Offences (POCSO) Act 2012, to deal with child sexual abuse, a slogan coined by the women’s movement during the early days of the anti-rape campaign — “Mathura was raped twice, first by the police, then by the courts” — still rings true. In a recent case, Justice Sadhana Jadhav of the Bombay high court relied upon certain incriminatory details contained in the chargesheet to justify granting bail to the man facing charges of raping his minor daughter under the POCSO Act. It almost seemed that granting of bail is contingent upon the conduct of the victim rather than the fact that investigations are complete and the chargesheet is filed.
Raising doubts about the reliability of the girl’s complaint in an open court, the judge commented: “The statement of the victim on the basis of which the crime is registered does not appear to be truthful and, therefore, does not inspire confidence of this court.” Making a value judgment, the judge continued that the girl had inherently abnormal behaviour and sexual instincts from her childhood(!), probably because of the environment and atmosphere where she lived and the conduct of her deceased mother. Her marginalised existence seems to justify the abuse by her own father. The facts of this case are far more tragic than even Mathura and Suman Rani. When she was in Class 6, her mother died of AIDS and she was abandoned. Later she was sent to a Christian institute for adoption. The judge relied upon a letter the child was made to write at the time of adoption, in her own handwriting, that she is “used to doing dirty things”. The judge awarded the child of tender age an agency to determine what is “dirty” and then indulge into acts which are “vulgar”, “obscene” or “immoral”, which are socially constructed notions, out of her own volition. What would be the impact of such comments made in open court, and published in newspapers on the vulnerable child, now pursuing higher education against great odds? The only concern for the judge while granting bail in cases of child sexual abuse ought to be the safety of the child, which the judge has ignored completely.
The law forbids defence lawyers from commenting upon a victim’s past sexual history during the trial. Here the judge was referring to the child’s own incriminatory statement to justify granting bail. At the stage of granting bail, judges cannot go into the merits of the case. The accused had not succeeded in securing bail in the trial court because it was a case of a father sexually violating his own adopted child. It was a demand of the women’s movement that women judges be assigned to hear cases of sexual violence, as they would be inherently sensitive towards victims. But the extremely insensitive comments by women judges make us realise that gender sensitivity is not linked to female anatomy.
The writer is a women’s rights lawyer
